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TMI Blog2019 (6) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Fine Penalty C/20467/2017 403/2016 dt. 08/06/2016 Rs. 22,14,833/- Rs. 5 lakhs u/s 125 Rs. 2.5 lakhs u/s 112(a)(ii) C/21805/2018 298/2018 dt. 09/08/2018 -- --- --- 2.1. Briefly, the facts of the present case are that the appellant had imported capital goods claiming exemption under EPCG Scheme in terms of Customs Notification No.49/2000 dt. 27/04/2000 against EPCG Licence No.0730000275 dt. 22/02/2001 with the duty foregone amounting to Rs. 22,14,833/-. The said goods were imported vide Bill of Entry no.02427/20-02-2001 through ICD, Bangalore as per the provisions of Para 6.11 of the Handbook of Procedure Volume 1 (1997- 2002). As the appellant failed to submit the Installation Certificate in respect of the capital goods as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt filed appeal before the Commissioner(Appeals) and the Commissioner(Appeals) vide Order-in-Appeal No.403/2016 dt. 08/06/2016 upheld the Order-in- Original with regard to confiscation, redemption fine, interest and penalty. As regards the Customs duty paid, the Commissioner(Appeals) remanded the matter back to the adjudicating authority for examining veracity of the appellant's claim that the entire duty had been paid in full. Aggrieved by the Order-in-Appeal No.403/2016, appellant filed appeal C/20467/2017 before this Tribunal. In the meantime, the Jt. Commissioner of Customs, ICD, Bangalore, as per the direction of the Commissioner(Appeals) passed Order-in-Original No.1/2017 dt. 04/01/2017 and confirmed that the appellants have to discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2014 for which he received consideration in foreign exchange and if that is considered, then the export obligation will get reduced to Rs. 2,30,01,474/- instead of 2,58,30,000/- and accordingly customs duty foregone also gets reduced to Rs. 19,72,297/- from Rs. 22,14,833/-. He further submitted that the appellant imported capital goods with intent to manufacture and export of high precision equipment to selected markets. However, the technical support assured for manufacture and marketing of the equipment was not extended resulting in complete breakdown of the project. The export obligation could not be fulfilled due to the circumstances beyond the control of the appellants and they have suffered huge financial losses and had to close the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so referred to the Public Notice No.22 (RE-2013)/2009-14 dt. 12/08/2013 which provides that in all pending cases of the default in meeting export obligation can be regularized by the authorization holder on payment of applicable customs duty and interest. 4. On the other hand, the learned AR defended the impugned orders and submitted that redemption fine and penalties have rightly been imposed because the appellant have not submitted the installation certification and have also not complied with certain other conditions of the EPCG licence. 5. After considering the submissions of both the parties and perusal of the material on record, I find that in the present case, the appellant could not fulfill the export obligation on account of reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to these factors, approached the Commissioner and requested him to permit them to encash the Bank Guarantee and deposit these amounts due to the department. The same was granted and the amounts were deposited by TR-6 Challan on 30-11-2000. The same has been appropriated in the impugned order. The Show Cause Notice alleging violation of the Notification under Section 124 of Customs Act was issued on 15-1-2001. In terms of the adjudication order, the machineries were confiscated and granted redemption under fine of Rs. 20,00,000/- besides a penalty on the Company of Rs. 20,00,000/- and penalty of Rs. 5,00,000/- each on the Managing Director and the Executive Director. The question in this appeal is as to whether the goods can be confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Philips India Ltd. v. CC, Mumbai [2001 (137) E.L.T. 1267 (Tri. - Mumbai)] which has been followed by the Tribunal in the case of M/s. Fal Industries Ltd. v. CC, Chennai - 2002 (53) RLT 86 (CEGAT). Though these decisions have been arrived at in the context of Notification 160/92 and not Notification No. 110/95, dated 5-6-95. The law laid down therein would be equally applicable to this case. Therefore, following these decisions, we find that in the case of Notification 110/95 also, the drastic measures of ordering confiscation under 111(o) of the Customs Act and penalty under 112A of Customs Act, 1962 is totally uncalled for. 6. Therefore by following the ratio of the decisions cited supra, I am of the considered view that in the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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